Family Law Hub

JAL v LSW [2017] EWHC 3699 (Fam)

An order was made that the child should live in England in the shared care of both parents after the mother had wrongfully removed him to Hong Kong.

  • Neutral Citation Number: [2017] EWHC 3699 (Fam)

    Case No: BR17P00249

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 06/12/2017

    Before :

    MR. JUSTICE WILLIAMS

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    Between :

    JAL (Applicant)

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    LSW (Respondent)

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    Miss Jacqueline Renton (instructed by Ewings & Co) for the Applicant

    Miss Sarah McIlroy (instructed by Dawson Cornwell) for the Respondent

    Hearing dates: 4th, 5th, 6th December 2017

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    Approved Anonimysed Judgment

    MR. JUSTICE WILLIAMS

    This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

    Mr Justice Williams:

    1. I am asked to decide on the future of a little boy J, who is 8 years old. The applicant is J's father JAL who is represented by counsel, Ms Renton. The respondent is J's mother LSW who is represented by counsel; Ms McIlroy. The father asks me to make an order that will mean J continues to live in England under a shared care arrangement; living 1 week with his father and then 1 week with his mother. The mother asks me to make an order that permits her to take J to live permanently in Hong Kong with her. She proposes that J would spend time with his father each summer for up to 4 weeks in England and either one or two other holidays each year of up to 12 days in England.

    2. The only application formally issued is that made by the father on 23rd June 2017 [B1] That application sought

    (a) A child arrangements order specifying that J was to live with him

    (b) A prohibited steps order preventing the removal of J from the father's care and from the jurisdiction and the obtaining of a passport for him and

    (c) The immediate return of J to the father's care.

    That application was made because on 16 June 2017 the mother had collected J from school and had moved into a women's refuge having made an allegation that the father had assaulted J on 14th June. She made further and more extensive allegations in the following days. A social services investigation commenced in which the social worker concluded in effect that the mother had exaggerated matters and that there was no reason why J should not return home. However by this time - the 22nd/23rd June - the mother having discussed matters with her family had decided to take J to Hong Kong to keep him safe and was in the process of implementing that plan. The father having not been able to persuade the mother to return home with J or at least to return J home had instructed solicitors.

    3. By 23rd June the mother plan to return to Hong Kong and the fathers to apply to court came to fruition. At about 3pm Recorder Allen made an order in the terms of the application having read the fathers statement and heard evidence from him. Between 3.18-3.20pm the father's solicitors made 3 calls to the mother's phone and spoke to her twice. At that time the mother was at the Chinese Embassy obtaining emergency travel documents for J. The solicitor says she informed the mother of the order and the mother told her to speak to her legal representatives and rang off. The father's solicitor was unable to make contact again and the parties returned to court Recorder Allen then amended his order to incorporate reading the handwritten statement of the father's solicitor. The mother says she did not understand from the call that an order had been made which prevented her removing J. At 3.47pm the mother purchased flights for herself and J and they flew that evening.

    4. The mother's removal of J from England of course amounted to a wrongful removal for the purposes of the 1980 Hague Convention and the father lost no time in making an application for J's summary return. The mother defended it on the basis that a return would expose J to a grave risk of harm and that he objected to returning. The application was heard and determined on 22nd August 2017 by the Honourable Madam Justice Au-Yeung who ordered that J be returned to the UK. The mother's attempt to appeal did not get off the ground and on 1 September 2017 J and the mother returned to the UK. By 14 September they were back in court when the mother confirmed that she wished to pursue an application for leave to remove J permanently from the jurisdiction and so DJ Hudd gave directions to timetable the competing applications to a 3 day final hearing.

    5. And so the applications came before me this week. Over the course of the hearing I have

    (a) Read the 3 bundles amounting to some 8-900 pages together with additional documents in the form of a statement from the paternal aunt, some additional correspondence and the parties helpful Skeleton Arguments. I declined to admit into evidence a document produced by Ms Renton which J had left at the family home after a visit with the social worker on 21 June 2017 because it appeared it might contain confidential notes taken by the mother during a meeting with Women's Aid. I also was provided with two sets of the leading authorities on relocation.

    (b) Heard oral evidence from

    - Ms Janet Sivills the hugely experienced Cafcass officer who has reported to the court.

    - The father

    - The paternal aunt

    - The mother

    - The maternal uncle

    (c) Heard the submissions of Ms McIlroy and Ms Renton.

    6. Very early in my reading of the case it became clear that the mother had made very serious allegations of emotional and physical abuse against the father which appeared to fall potentially within the ambit of FPR PD12J. Given that a shared live with order had been agreed by the mother on 14th September 2017 and DJ Hudd had not been invited to give any directions as to fact-finding this appeared a little unusual. On exploration with the parties Ms McIlroy produced a Schedule containing 19 separate allegations. She explained although the mother stands by all the allegations for the purposes of these applications the mother's position was that

    (a) The allegations of physical abuse of her were no longer relevant as the parties lived in separate households

    (b) The allegations of coercive control were relevant as they formed part of the mother's rationale for wanting to live in Hong Kong and thus out of the father's sphere of influence

    (c) The allegations of physical and emotional abuse of J arising from the fathers temper and possible OCD were relevant to the amount of time the father should spend with J (albeit she accepted the father should have up to 4 weeks unsupervised contact each summer)

    (d) The mother invited the court to address them in what I described as a 'light touch' fact finding within the overall consideration of the competing applications.

    7. Ms Renton's position was that given the father denied all the allegations and, in her submission, the evidence was not strong in support of them that the court could indeed deal with the allegations within the overall consideration of the case. She observed that the mother was now seeking to draw the sting of the allegations which had been made in support of her Article 13b defence in Hong Kong because in maximising their impact there, the inevitable corollary was that they now presented an obstacle to the relocation application.

    8. The three day time estimate which the case had been given to include judicial reading and delivery of a judgment was plainly not sufficient to explore the allegations in detail (in particular those of long term coercive control) as well as dealing with all the relocation issues and so I proceeded with the case on the basis that I would keep under review whether a fuller fact-finding was required in order to ensure that J's welfare was properly protected.

    9. This case vividly illustrates the tension which may creep into relocation cases where the party applying to remove a child has previously made allegations that the other parent has behaved abusively. Should the parent pursue them, recognising that if they are not proved to the level alleged, the other parent will inevitably say (and perhaps with justification) that the removing parent is so hostile to the left-behind parent that they cannot be trusted to promote contact. Unless the removing parent can substantiate the concerns to such a level that a no-contact or minimal contact order is appropriate then the pursuit of the allegations in itself may undermine the application to remove. On the other hand if they do not pursue them, having made them the left behind party will say that they were falsely made and either that illustrates that contact will be made difficult because of the removing parents hostility to the left-behind parent or that they may re-surface in the other jurisdiction as a reason for opposing or terminating contact. It creates a real potential difficulty for the judge hearing such applications in particular where the parties have not confronted the issue head-on at the directions stage and emphasises the need to consider the implications of PD12J for cases at the earliest stages.

    10. As will be seen below within the Chronology and Analysis the answer to the conundrum emerged ultimately quite clearly in this case.

    The Legal Framework

    11. In relocation cases there is no priority afforded to the application to relocate as opposed to the application for a child arrangements order; there is thus no 'lead' application. To approach relocation cases in such a way is to fall into the 'linear' approach trap which the authorities now clearly disapprove. The essential task is to weigh up two (or conceivably more) competing options as to the country in which the child should reside and the parental care framework in which the child will live. That requires a comparative evaluation of the options available. Such evaluation may be assisted by a 'balance sheet' but of course one has to be wary of then following a map without contours which of course can result in a misleading picture and the arrival at an unexpected and probably wrong end point.

    12. The most recent and authoritative appellate decision on the approach to permanent overseas relocation cases is Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882 [2017] 1 FLR 979. The material paragraphs of the judgment are 3 & 4, 30-35 (Ryder LJ) and 45-52 (McFarlane LJ). Re F together with the earlier authorities makes clear that that whether the applications are configured under s.8 or s.13 Children Act 1989 the following framework applies.

    (a) The only authentic principle is paramount welfare

    (b) The implementation of section 1(2A) Children Act 1989 makes clear the heightened scrutiny required of proposals which interfere with the relationship between child and parent

    (c) The welfare checklist is relevant

    (d) The effect of previous guidance in cases such as 'Payne' may be misleading unless viewed in its proper context which is no more than that it may assist the judge to identify potentially relevant issues.

    (e) In assessing paramount welfare in international relocation cases the court must carry out a holistic and non-linear comparative evaluation of the plans proposed by each parent.

    (f) The effect of an international relocation is such that the Article 8 rights of a child are likely to be infringed and the court must conduct a proportionality evaluation. In addition to – indeed probably as a component of the Art 8 ECHR rights I must factor in the rights of the child to maintain personal relations and direct contact with both parents on a regular basis (unless that is contrary to her interests) in accordance with Article 9 of the United Nations Convention on the Rights of the Child ("UNCRC").

    13. Insofar as it may assist in identifying the relevant issues a court may find it helpful to consider what may be described as the 'F, K, C Payne' Composite. This is no more than an integrated approach to the welfare checklist and the 'Payne' guidance/discipline incorporating the Payne criteria and any other particular features of the individual case which appear relevant. Of course in some cases it may be that one or more particular aspects will emerge as carrying significantly more weight than others – a contour map with high peaks and low valleys; in others the factors may be much more evenly weighed and present a gently undulating landscape. In the former the balance may fall more obviously in one direction if it is dominated by peaks with no valleys in others the peaks may be balanced by the valleys creating a finer balance. In the latter the overall undulations may make the balance a very fine one. Ultimately every case is fact specific. This case is a paradigm example of that.

    a. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding),

    b. their physical, emotional and educational needs,

    c. the likely effect on the children of any changes in their circumstances.

    What changes to housing, schooling and relationships are likely (if any) if they remain in England?

    How realistic is the plan in the sense of how likely it is to be implemented as conceived? Experience (in the form, inter alia, of reports such as those Professor Freeman) suggests that particularly in respect of contact proposals considerable care needs to be taken to ensure a realistic view is adopted having regard to the inevitable vagaries of international contact.

    Will there be positive effects in respect of the removing parents ability to provide care for them?

    What are the other positives and negatives about Country X in terms of environment, education, maternal family?

    What will be the impact on them of moving permanently to Country X in respect of their relationship with the left behind parent and other extended family? To what extent may that be offset by ongoing contact and the extension to other relationships?

    d. his age, sex, background and any characteristics of his which the court considers relevant,

    e. any harm which he has suffered or is at risk of suffering (there is obviously a significant overlap here with the effects of a change)

    What may be the impact on the child of the change in their relationship with the left behind parent? How secure is that relationship now and how likely is it to endure and thrive if the child moves? How realistic are the proposals for maintaining contact?

    What will be the impact on the removing party of having to remain in England?

    What will be the impact on the left behind parent of the children moving?

    Will the ability of either parent to provide care for the children be adversely effected by the refusal or grant of the application and if so to what extent?

    To what extent will loss of contact with the left behind family be made up for by extension of contact with the maternal family?

    f. how capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs?

    How are the parents currently meeting their needs? Are there any aspects of their ability which may be particularly important in the context of relocation; for instance their capability of meeting the emotional need for a relationship with the left behind parent.

    Is the application to relocate wholly or in part motivated by a desire to exclude or limit the left behind parent's role. Is the removing parent able to promote a relationship with them?

    Is the left behind parents opposition to the move genuine or is it motivated by a desire to control or some other malign motive?

    Will the parent be better able to care for the children in Country X than in England?

    What role is the left behind parent likely to play in future; both if the application is granted and if it is refused?

    g. the range of powers available to the court under this Act in the proceedings in question.

    Can conditions of contact in terms of provision of funds/frequency of visits be used?

    Can court orders be made in Country X (mirror or reciprocal enforcement) to support contact.

    The Parties Positions

    14. The father's case is set out in his statements. A significant deficiency in his case prior to the commencement of the hearing was how he proposed the mother should exist financially. As a result of the mother having issued a divorce petition in Hong Kong the issue of the financial orders that might subsequently be made was uncertain and the father had, it seems, been advised by his HK lawyers to await proceedings there before committing himself to any package of support for the mother. Whilst from the financial remedy perspective and that of the HK lawyers this might be perfectly acceptable – indeed absolutely the right approach – it does not dovetail with the child-centred approach of the court considering the children. Ultimately parents have to elect whether to prioritise the welfare or their children in these situations which is best achieved by giving clarity and certainty to finances and housing options. If they elect to prioritise the finances – even under the cover of advice from their finance lawyers – this is likely to be counter-productive to the children's welfare. This difficulty was very evident to Ms Sivill's such that her conclusion was largely centred on whether a way could be found for the mother to remain in England.

    15. However after some encouragement from me the father made an open offer as to the finances. Thus his proposal in summary is this

    - The parties continue to share the care of J one week on one week off

    - J continues to be schooled at his current school and each of his parents continue to occupy rented accommodation nearby.

    - The property in East London be re-mortgaged to release 50% of the net equity (expected to be around £125,000) to be paid to the mother to provide a fund from which she can house and provide for herself pending her securing work and/or benefits. The father will in addition pay maintenance at CSA rates for J of around £320pcm. He would retain his net income (it is currently £50k pa but will reduce as a result of the re-mortgage) his offer being on open and clean break basis.

    - He will continue in his business, working from home much of the time and travelling abroad on occasions.

    - He will care for J himself with the help during his week of the 'wrap-around' care at the school and with input from his sister and mother when necessary.

    - He says the mother with her degree, experience in marketing and with her language skills would be able to obtain employment with little difficulty. She is eligible to work under her visa status and she could convert that to a longer term visa including settling here. It is agreed by both parties that the mother should be able to resolve her immigration status to enable her to remain here and to have recourse to public support in due course.

    - He says she has some support in England through the Chinese church and that she would be able to adjust to living independently in England. He says she is exaggerating the level of distress she would suffer and the extent to which she is unsupported.

    - He proposes that J should not travel to Hong Kong for some time given the risks of a further abduction. He recognises the mother will wish to travel to HK and that her family may wish to travel here to support her.

    16. On behalf of the Father Ms Renton makes the following points in support of the contention that J's paramount welfare would best be served by this court endorsing the fathers approach.

    - The likely effect on J of a change and the emotional harm that would ensue are central

    - The abduction and relocation are inextricably linked

    - Her rationale for leaving remains in full effect

    - Her behaviour to contact in HK illustrates what might happen

    - Her current position and insight shows that in fact she is hostile to contact whatever her statements might say and that she has no insight or appreciation into the effects on J of ending his relationship with his father

    - Cafcass: Ms Sivills' assessment is only one part of the picture and in so far as she reaches conclusions which are adverse to the father she has not compared and contrasted the evidence in the way the court has

    - J is not now fearful of the father and is having a good experience. Ms Sivills said the balance is good now.

    - The practicalities make living here viable – the father will provide for the mother one way or another. To the extent that Ms Sivills caveated her report – it has been filled.

    - There is a real risk of extinguishing the relationship given the mother's attitude and behaviour in the past. There is a disconnect between the allegations and J's presentation which should lead the court to consider the allegations to be fabricated. One has to assess her ability to promote the relationship as against her allegations and compare that with independent observations. She has now watered down the allegations she makes in her relocation statement compared to what she said in Hong Kong and that is tactical. She says what she thinks she needs to in support of the relocation but it isn't matched afterwards – her oral evidence is in effect to revert to supervised contact – it is window dressing. It is only when you hear evidence that you appreciate really what she is saying is no overnight contact

    - The mother makes no apology – she says it was to create a safe situation and that dominates her thinking; she has no insight into the effect on J. She doesn't have a broader appreciation of his interests.

    - She fought tooth and nail – tried to appeal – bitterly fought and only returned because of a court order. If J had remained the mother's attitude to contact would have led to the father being swiftly marginalised. Ms Renton refers to the mother's lawyers letters of August in terms of contact sought.

    - M and her family view the father in a more negative way. The maternal uncle said he thought it would help the relationship being apart because it wasn't a good relationship. There is no person there who would say to mother that J must go.

    - She wants to put distance between J and the father. She believes he is a risk and so it is unlikely she will promote contact.

    - If he moves he loses the stability he has in England, his friends and school. J's own views about living in HK are unreliable. He will struggle to transition into learning in Cantonese as he doesn't read or write it.

    17. The mother's position is set out in detail in her statement and was supplemented by her oral evidence. The main features of her proposal are

    - She will return to live with her family in the flat her mother shares with her brother. That will provide her with the family support she needs. When financially independent she will move into her own accommodation. She has some friends in HK from school and college.

    - She says she has no support in England having been unable to establish friendships because the father did not allow her to. She has no family here.

    - J very much wants to live in Hong Kong and with his uncle and he will be very happy and relaxed with that.

    - She has offers of employment from two prospective employers; one in her former field and the other with her brother. She can work hours which will allow her to be home after school and her mother will take J to and from school. In contrast she will struggle to gain employment in England with her poor English skills and the lack of a network here.

    - J has a place at a school which offers a creative curriculum that he will enjoy. He speaks Cantonese so will be able to make the transition without undue difficulty.

    - Hong Kong is her home and she easily re-establishes herself and provides for Js needs there. In the UK she will struggle because of financial concerns, difficulty with employment and no support. In addition she will fear that the father will seek to re-establish control over her and will undermine her and marginalise and will not co-parent. She points to his arranging lessons and parties for J without her input.

    - In terms of contact she supports an on-going relationship between the father and J and in could be maintained by J seeing his father for 4 weeks in the summer and for up to 12 days on one or two of the other holidays. She says this actually would be better than the current arrangement because J is fearful of his father and not happy with the shared care. She believes if J is living primarily with her and seeing his father for fun times during holiday periods this would actually help restore J's trust in his father.

    18. Ms McIlroy in support of the Mother's case makes the following significant points.

    - It is not a new existence for J to return; he has family and Cantonese. This is returning home not a new country and culture. He will get extra support at school to adjust.

    - The mother fully acknowledges the importance of the father's role in Js's life. In contrast the Father refused to accept M's role, he portrays her as a 'helper' and minimises her importance.

    - The mother has good reason to wanting to go. The situation she was in was one of coercive control and the text messages of June and his attitude to 'pocket money' show his attitude to her. There was financial control – she had to ask for permission to go to counselling

    - There are inconsistencies in the father's case; about when he knew of M's whereabouts, about what support M has. He says what he thinks will further his case.

    - There is a real risk to J; the father denies J's reality. The mother's motivation is not to terminate the relationship – she thinks it will benefit from distance and positive holiday contact

    - She has an emotional vulnerability – which Ms Sivills recognised

    - The court should conclude she will promote contact because

    o The abduction was welfare related

    o The lack of contact initially is she was scared

    o She was reluctant to contact Father because of her fear and advice she received

    o She was trying to encourage J

    o She stands by her allegations – the record at D30 shows her raising it - she shouldn't be criticised for not reporting more.

    - Skype can be brilliant and the time difference works well. She thinks skype will not be problematic now.

    - Ms Sivills: she has looked at it as it is now. Her report is clear as to J's wishes

    - The finance provides no long term security. It is wholly inadequate.

    - If J stays here the court should – as suggested by Ms Sivills review the shared care arrangement.

    19. Ms McIlroy said that J's emotional needs and the mother's capability being enhanced in HK and undermined in England together with the risks arising to J from the father and to the mother from being forced to remain are the predominant features. Although finely balanced – the impact on M and J means the application should be allowed.

    The Evidence

    20. I set out below a summary of the background and evidence drawn from all that I have read and heard. Insofar as matters of fact are in dispute I determined them on the basis of the normal civil standard, namely whether it is more likely than not that a matter occurred or did not occur. I take account of all the evidence I have heard and place it in the context of other evidence. To the extent that lies have been told I give myself a 'Lucas' direction and remind myself that people lie for many reasons and that just because they demonstrably lie on one issue that does not mean that they have lied on all others. In evaluating a party's credibility I have regard to the totality of their evidence and how it fits in with other pieces of evidence, how consistent it is internally and with other items of evidence and whether they had a motive to lie and how they gave their evidence and the dynamic between them insofar as that may bear upon their credibility and the issues in the case.

    21. I will say immediately that this is a case where the benefit of seeing the parties or hearing the parties giving oral evidence was manifest. The demeanour of the mother and father, some of their answers and demonstrations they gave in court gave me an insight that simply could not be gleaned from the papers.

    22. When I say I conclude or I think or other such expressions that means it is my finding on the balance of probabilities as to that matter.

    22 Aug 1970

    F – British National. Consultant with his own business. Now lives in South London. Works a lot from home. Parents not married, raised by his grandmother, two half-sisters, each with children.

    1973

    M; HK national. Parents divorced when M 2 or 3. Little contact with her F.  M graduates in Translation and worked Marketing.  

    One older sister and one younger brother. MGM re-married but separated from step-father

    1995

    F moves to HK and works in sales.

    2002

    Parties meet in HK.

    2007

    Parties marry

    2009

    J born in HK. Dual nationality. M takes 2 months maternity leave from job. F not working for a period. MGM assists with child care .

    M says F rarely assisted and was not interested. They had helpers as well as MGM

    F says he was involved in the daily care of J, on weekday mornings, evening and weekends. He set his routines and was involved and played

    M's brother who gave evidence said the father was a very good father when J was young which does not sit very well with M's description.

    2010

    M gives up work

    2011

    M suffers mis-carriage. M says the Father was very unsympathetic and unhelpful. F denies this and says the mis-carriage was very upsetting for them both which led to tension and they attended counselling.

    2012

    Parties attend 6 sessions of marital counselling [HK1 – 3- 153]

    2013

    O attends school [C66]

    Sept 2013

    [HK1-3-155] police called because F would not allow M to visit her sister. F then allowed M to visit but M said she would not go. Both parties wanted to settle the dispute. F says he was very worried about his work and thought M might not return to care for J as she had previously stayed away for periods.

    Oct 2013

    [HK1-3-156] F contacts M and says the problem is on his side and he will contact Dr about OCPD

    Oct 2013

    F diagnosed with mild OCD and prescribed some therapy which seems to have consisted of self-regulating his cleaning and demand for perfection and anti-depressant and anti-anxiety medication [HK1 – 3- 157

    Nov 2013

    F sees Dr again [HK2-20] 'My conclusion was [F] had recovered from his obsessive compulsive reaction and did not need further follow up'

    Aug 2014

    Parties move to UK. F says for schooling and work. M says mainly for work.

    -        M says she did most of schooling morning and F collected him after school.

    -        M says main carer giver, F says no , in particular when M away [HK1-1-33]

    Dec 2014

    M contacts support group for OCD – refers to F having panic attacks and becoming more obsessive. Says in HK he has records of using physical threats. It is not clear what this latter relates to.

    Dec 2014

    M returns to HK

    -        M's account at C73 is that there was an argument about a mark J had made on the floor and F told her to get out which she did and she stayed in a hotel for a few days. She says she had nowhere to go and returned to HK with flights paid by brother. M denies returning to the flat as described by F

    -        F's account is also of a row about but his account is M left and he asked her to return. That she returned to pack items and would not come home. He says she said goodbye to J in another room and departed. She did not make contact on Xmas Day and he could not contact her.

    -        F says J was very upset and confused.

    Having heard both parties give their evidence on this I am satisfied that F's  account is broadly accurate and that he asked her to stay. M seemed to be disconnected from the impact her departure might have on J.

    Jan 2015

    F makes enquiries about counselling [HK1-3 -189]

    -        M says counsellor said he treated M like dog on leash. This seems a surprising choice of words for a counsellor.

    Feb 2015

    F and J in HK for a week

    -        [HK1-3-177] Facebook message from F – M (doesn't appear controlling in nature but constructive)

    Apr 2015

    M returns to UK

    May 2015

    M stays in HK after family holiday in Singapore. MGM brings J home and stays with him in UK

    -        M and F seeking work in Singapore [HK1- 3 -180]

    -        M says I/v in May but stays in HK until July

    -        M says

    Jul 2015

    M returns to UK

    Oct 2015

    O starts at his current school

    Year 96.5% attendance.

    Nov 2015

    M returns to HK.

    Nov 2015

    J starts after school club

    Xmas 2015

    F and J visit M in HK for 2 weeks. M visits Dr and is referred re possible ovarian cyst.

    Easter 2016

    F and J visit M in HK for 9 days

    M and F attend 1 session of marital counselling [HK1-3-154

    M attends clinic re ovarian cyst. M due to have operation privately which F provides funds for. M discovers operation will be more expensive and gives money to her brother. Goes on public list.

    Jun 2016

    M returns to UK

    Aug 2016

    M attends GP with F as she experiencing breathlessness. GP sees her alone and she tells GP F has been emotionally abusive to J and has restrained him 2 x but no harm.

    [If F had been as abusive and violent to J as M now alleges  - and in evidence she confirmed that it had been like this for many years although she thought it was getting worse as J gets older and asserts himself- it is hard to reconcile this description]

    Sep 2016

    M returns to HK for surgery. MGM comes to UK to help care for J. Elective surgery carried out on 9 September. M said she did not want to wait in NHS waiting list – although she waited 6 months for surgery in HK.  By 2 November 2016 she was recovered and discharged. The mother said in evidence she needed a months recovery and that is why she stayed on after  but the medical records do not support this. M said during this time she was attending meditation classes and learning about herself. It is hard to understand why she did not immediately return to care for J.  She again showed no appreciation of the effect on J of staying away nor did she seem to understand the inconsistency of  saying the father was a serious risk but leaving J in his care for very extensive periods of time.  In her statement she also says that the father has never  been able to take care of J – which clearly is inconsistent with her doing so; even if at times her mother was assisting. The M clearly has a strong attachment to Hong Kong – her returns there show that; whether for hospital treatment or family support. There is  little evidence of friendships.

    Dec 2016

    M returns to UK

    Jan 2017

    J starts Kumon; [HK1-2-90] Report : enthusiastic learner – regular attender – positive attitude – completes daily work in timely manner – a terrific half year

    28 Feb 2017

    F alleges M assaults him [C2-3]

    Parents argued over trivial matter [HK1-1-32]. M throws toy at F and hurts F's back. F saw GP, physio and osteopath [HK1-3-98] F reported it was child who threw toy at him. Injury not of long term duration and not effecting quality of life. Last appointment on 9 June.

    M accepts that she has occasionally lost her temper and slapped F.  In her evidence she did not come across as fearful or timid but was prepared to challenge him across the court room about one time he had a panic attack.

    17 Mar 2017

    M applies for and is granted leave to remain

    21 Mar 2017

    M is late collecting J from after school club. Club unable to contact her and  says she has been shopping but arrives at 6.30 with no shopping.

    10 Jun 2017

    Parties separate after argument.

    ?? J kicked in left eye at school [Hk1-3-241]

    11 Jun 2017

    M texts F: I hope we can both keep a good term before I go. Please calm down and don't abuse me with words anymore. (details about her plans before she leaves) I really hope we can end in good terms and in a peaceful way. Please. I can definitely keep peace during this period. I hope you can too. Thanks again.

    The inference from this is that there were heated arguments when hurtful things were said and F lost his temper as did M. However it suggests M did too as does the evidence of J that he heard arguments and M's acceptance that she slapped F

    12 Jun 2017

    M-F: can you send photo of J on my back Thanks :)

    13 Jun 2017

    F-M: Question: are you back for dinner as J wants to know if you are cooking for him?

    M-F: on way back – will arrive at 7pm – Sorry I stayed out in the shops.

    J injured at school – tripped and knocked right shin [HK1-3-243

    14 Jun 2017

    M alleges F kicked J (F says he prodded him)

    -        [C38] [HK1-1-34] M's account.

    -        F's account [HK1-1-35]

    I shall consider this in more detail below.

    15 Jun 2017

    M contacts Womens Aid.

    16 Jun 2017

    At HK1-3-100-104 are Text exchanges.

    Between M and F about a letter F had opened to M which was from 'Social Care' {not sure what this was about as the Local Authority did not open file until 18 June after Women's Aid made a referral} F says it is best if she lets him speak to them and let him take 'responsibility' . M then rings them and says it is to do with late pick up. F says ' So you need to inform them that I take responsibility for J with you helping me..'  'Don't tell them about our personal relations' 'we don't want them checking up on us. J is fine.

    M collects J from school and moves into refuge. F attends to F collect J and is told M has him.

    F contacts M and she says 'Hey please, no worry we are safe. With J. School will speak to you on Monday after 11am' [This is Friday evening – so the weekend is ahead]

    Further exchanges suggest F was getting very anxious (although not abusive) and worrying about his tennis lesson, asking to speak to J. M does not respond.

    16 Jun 2017

    (date evident from reference to tennis class)

    M contacts F's sister to say F was angry and shout and kick J who is scared of him. SS confirmed 'an emotional abuse and domestic violence case'. M says she thinks F will be super-angry . M says F thinks its normal discipline and he would say M wrong when she steps in.  Says F holds her hands tight and shouts in her face. Says she says she calmly tells him he is hurting me.

    [Given M accepts she would lose her temper and has slapped F I think this exchange tends to minimise her role and maximises F's role. It is significant though that Ms allegations are as limited as they are – she is clearly letting off steam – but she doesn't say F is constantly throwing J around, physically chastising him or threatening her.]

    17 Jun 2017

    F contacts M about J's sports lesson.

    F contacts police. They tell him J well

    [Ms McIlroy criticises F for contacting police in these circumstances given the content of M's text saying they were well. I don't consider F's response was unreasonable or unusual given the lack of an explanation or response on Sat morning. It also suggests F did not think he had anything to fear from police in relation to M or J.]

    F later texts about Fathers Day (18th) and J's sports day (19th) . M says she is taking advice and should not contact him until Monday.

    18 Jun 2017

    F frequently texting M asking to speak to J, asking about his routine, tell J he got a B in his Kumon – well done :)

    M replies saying she had been advised not to contact him but wants him to know they are safe

    19 Jun 2017

    Local Authority contact F. S.47 investigation.  J alleging kicked by F

    F texts M: Bromley SS said you need some money so I transferred £50.  F trying to persuade M to come back.

    20 Jun 2017

    Medical Examination: D1: Various bruising found including one of right forearm which J said was from dad kicking him. Others from fall at school. Bruising to arm was consistent with history given by J.

    J said 'I am worried daddy will find us and take us back to his house'  'he might hurt me again and shout at mummy' 'daddy kicked me on the arm and in the eye'

    M told Dr [D2] that F kicked J 'over his whole body'

    J said F had locked him in toilet when 2 and in bedroom when 6 and 7.

     

    F- M: I understand you made a serious allegation against me.

    M-F: J is very clear what you did to him

    {NB M does not say she saw it , or anything like 'You know what you did' which might suggest M did not see it}

    F-M – he does not respond to the allegation – which may suggest he was aware he had overstepped the mark somehow but might also have been him not putting anything in writing.

    21 June 2017

    M and J return home to collect clothing

    -        F and J play for 20 mins

    -        M says [C41] 'J was immediately scared and said he didn't want to see his father. I reassured J that his father would not hurt him'

    -        SW [D9] Although somewhat hesitant .. after a minute or so J happily played and interacted with his father and the father's interaction was gentle and nurturing. 

    [In letter of 22 June the social worker says 'J has now been away from his father for several days and has been speaking to people about his father hurting him. After a couple of minutes J was playing and interacting with his father happily and from my observations I am of the view that this interaction was positive.']

    21 Jun 2017

    Women's Aid Risk Assessment

    [As an aside I would be interested in understanding the reasoning for the wording of the questionnaire which is in parts very leading for instance Q2 says 'Are you very frightened?'] 

    The Assessment contains M saying she would feel huge threats on her if she stood up to F, F is abusive to J and throws him around and pushes him hard, he locks J in the bathroom and J cries and begs to be let out, he put his hand over J's nose until J did what F wanted, abuse is getting worse, F grabbed her neck a very long time ago and squeezed it; F threw her on the floor [HK1-3-246] he made me have sex without a condom; he is OCD and narcissistic; he refused to assist when she suffered a miscarriage

    23 Jun 2017

    SW tells M, J could return home. M refuses.

    J not in school.

    F's statement. In it he says M has 'limited support in the UK'. Ms McIlroy rightly says he has now changed his tune by saying M does have support in the UK.

    F's application for CAO; PSO and SIO

    -        Orders made by Recorder Allen for J to be returned to F

    3.18-3.20pm

    -        M informed by F's solicitor [C12] in 3 calls.

    -        M says she could not hear what was being said and didn't understand a PSO made [C18]

    15.47

    M buys tickets for cash from travel agent to fly to possibly Bangkok and then HK [HK1-3-113][HK1-3-118]

    [I am prepared to accept that M did not fully understand what had been ordered although I am satisfied that she was aware the matter was in court, that F wanted J back, that he was not agreeing to J going abroad and that M knew it was wrong to remove him. M said in evidence she had spoken to her family a lot ('every second') to decide before this what to do and they were worried a court case in England would drag on and she would not be able to go to HK.  I am satisfied that in circumstances where she knew a court was involved and that she would be in breach of the law in some way she decided nonetheless that she was entitled to do what she thought best and so decided immediately to purchase tickets and remove J to HK. Because she had not been served it would not be susceptible to contempt but could have been the subject of criminal proceedings under the Child Abduction Act 1984. As her family paid for the flights it was clear – as she accepted in evidence – that she could have obtained accommodation and dealt with the case but she chose rather to flee. She may have felt in a very difficult position in terms of accommodation and finance but the bottom line is she knew she in breach of the law and was seeking to avoid the intervention of the UK courts and authorities.

    23 Jun 2017

    After arrival in HK M enrols J in school and takes him to visit it several times [C81] and youth club. M said in evidence she visited several schools and did it almost immediately as she wanted to maintain his routine

    (I infer from this she sought to get him into school before the end of the school term)

     

    HK Judgment

    "The objective circumstances show that at least before the child left England his relationship with the father was not so bad as the mother wants to portray now" [HK2 -27#55] Refers to

    -        The English social worker,

    -        A family friend now living in HK

    -        The HK social worker

    -        After school club description of F

    26 Jun 2017

    F informed that M and J are in HK following enquiries by police.

    27 Jun 2017

    District Judge  adjourns Children Act hearing.

    Late Jun/early July 2107

    F e-mails F about meeting up to talk or to see or speak to J. M's last reply is on 22 Jun when she says she has lots on herself and lets try to sort out something Sunday (I think for contact)

    F continues texting after 23 Jun saying J needs to come home to resume school and that he does not agree to this. By 5 July F is aware J is in HK. 

    The overall exchanges over 3 weeks do not create a picture of a distorted relationship. It is clear F sees himself as the primary carer and can be assertive but he is not dictatorial but polite. M herself does not come across as submissive and compliant although does not want to be confrontational and seeks to avoid openly refusing anything. F at times is supportive by providing money and sorting out her phone. He is focused on J and his needs; sports day, his tie and bag, Kumon results and F clearly is very anxious to see and talk to J and to have him back.

    July 2017

    Year 2 School report [HK1-3-126]

    -        J is polite, conscientious and thoughtful

    -        Usually follows rules, occasionally needs reminders

    -        J has many friends

    -        Always works sensibly

    -        Beginning to explain ideas with increasing confidence

    The report depicts a fairly typical Year 2 child performing at or slightly above expectations for a 7 year old.

    4 Jul 2017

    Hague Summons issued in HK [HK1-1]

    Ex parte order made

    Hearing fixed for 10 July 2017 [HK1-1-10]

    10 Jul 2017

    HK hearing and directions given [HK1-1-15]

    -        Initially M suggested that she arranged contact before this hearing but later M gave evidence that it was at this hearing after discussing matters with her lawyers that she agreed to skype contact. The correspondence shows M gave an 'undertaking' to provide daily skype contact.

    11 Jul 2017

    SW Assessment [D7]

    -        Referral due to M's allegations of DV and assault on J. M said J is not safe in F's care due to physical chastisement.

    -        School report J is happy and settled, no concerns in respect of him. No concerns re emotional or behavioural issues, previous school had no concerns and J was happy and made good progress.  Current school surprised at allegations raised by M as they have not observed any concerning behaviour

    -        J happily played and interacted with F and F was gentle and nurturing. J did not appear afraid and was happy to be left alone with F. This undermined the extent of concerns raised by Ms Lau.

    -        M was obstructive in giving access to J and removed him from school for several days. LA had concerns as to her mental health and J's safety.

    -        When SW spoke to J he presented as nervous, looked to M for reassurance, M answered for him at times, J said F often gets angry but could not say why, he said F kicked him but couldn't remember why or when,

    -        M did not make J available to see SS

    -        SW did not identify any behavioural traits in J which would suggest he had been witness to on-going DV. SW concerned M had not approached police or SS before and had left J in the care of F for extended periods.

    11 Jul 2017

    After school club report [Hk1-3-95]

    -        Attending since 16.11.15. Never had any concerns with J's welfare

    -        F always tells us about any changes to usual arrangements

    -        F collects on time and J always seems pleased to see F

    -        First met J's mum in June/July 2016.  M then collected a few times but F was main person caring for J.

    -        M was then absent again for a while and J's auntie collected him a couple of times.

    -        From March 2017 M started collecting arriving just as we were about to close.

    -        F has always been a very reliable person and has always put J first with making sure his childcare needs were met.

    11 Jul 2017

    Skype: J covered his face with his hands and did not talk.

    F says M was sitting next to him

    12 July 2017

    Skype: J hiding face with cap and did not speak. M sat next to him and did not leave him. They seemed to be in a restaurant.

    13 July 2017

    Skype: J looked at the screen but no verbal reaction.. M stood behind the computer

    14 July 2017

    Skype: J not before computer just his feet for 2 mins and then an empty sofa. Noise in background.

    F's HK sols write to M's HK sols re concern M is not encouraging or facilitating skype.

    M's HK sol's respond: M alleges F has physically and emotionally abused J and so direct access should not occur. J has not taken well to skype. He has repeatedly walked away and M has taken some time and effort to persuade him to speak, and stay and talk.  As skype is causing J daily distress and anxiety it is demonstrable not in his best interests and will be suspended

    [This would seem to be in breach of the 'undertaking' she gave. It is apparent from M's evidence to me and in the documents that M does not tell J to engage but encourages him by saying things like, 'don't worry, you'll be safe'

     

    18 Jul 2017

    HK hearing.

    -        Contact Ordered – liberty for MGM to be present at all contact.

    18 July 2017

    Contact supervised by MGM:

    -        M's mother's note shows J putting his hands over his eyes, refusing to engage – F behaving inappropriately – (no encouragement from MGM)

    19 July 2017

    Contact supervised by MGM

    -        J initially not engaging but then did

    -        J tells MGM he doesn't want to go to F's home but did not dare tell daddy as F would be angry

    20-21July 2017

    Staying contact with MGM provided for.

    -        F and J and MA go to Disneyworld. MGM joins at dinner.

    -        J wanted to go to Stanley not with F. He refused to go and cried and shouted. F calmed him. They had dinner

    -        They went to F's friends home to stay night. J stayed in same room as F.

    -        They then went to Social Welfare on morning of 21.7

    22 July 2017

    Skype contacts: m says difficult to arrange because they were doing activities at 3.30pm [Ms Chow report]  and she had difficulty persuading J to talk to F. J said he did not like talking to F as he had hurt him,

    24 Jul 2017

    M files statement in HK [C27] Very critical of F in all aspects.

    -        Controlling and abusive

    -        Outbursts 3-4 times per week, demanding and narcissistic. will fly into a rage, possessive, manipulative and obsessive

    -        Has never wished to care for J – he wold lock him in bedroom at night when J wouldn't sleep

    -        When J began to talk the relationship worsened between F and J

    -        On almost every occasion F's voice rose until he was shouting and screaming

    -        He would restrain us by grabbing our arms and make us apologise – physically restraining us 3-4 times per week and shouting at us everyday – he is out of control in a rage

    -        He forced me to have sex without a condom.

    -        Since the beginning of 2017 the confrontations between F and J have escalated to frequent fighting and violence. He drags J by his feet across the floor, he pushes and throws J about. I have also seen him extract revenge and punish J for example by forcing him into a scalding hot bath as J objects that it is too hot.

    [This allegation appears in the section about events this year. J was asked about scalding baths by Ms Sivills and his response to her clearly indicated that he had not been forced into a scalding bath by F. This allegation which amounts to child cruelty of the most serious form would if true be a serious criminal act and would almost certainly have resulted in serious injury to J.

    -        F 'repeatedly and violently kicked J when he was on the ground. One of the kicks was to J's face… the father couldn't control himself and he kicked J repeatedly' [The evidence from around the time of the incident suggests M may not have seen this event and J told the social worker and the doctor that F had kicked him on the arm and eye. M told the doctor it was over J's whole body'. 

    -         I was sure F had the capacity to seriously harm J.

    -        M plans to respect J's wishes and bring him up in HK.

    28 Jul 2017

    GP says from records and his knowledge of J there are no concerns about his welfare in F's care [HK1-3-242]

    7 Aug 2017

    Social Welfare report: Ms Chow [HK1-1-29]

    -        The parents gave a similar account of the marriage and marital relationship with conflicts escalating after J was born-

    [M does not make significant allegations of physical or emotional abuse of herself and what she says of J is less serious than her statement)

    -        M described the incident on 14 June as F kicking J when J refused to go to bed. M said she dare not interfere.

    -        J could not recall what he did on 20-21 July but then said he did not like going to Disneyland with F. he said he was happy going 'home'. He said he did not want to sleep with F and cried quietly so F wouldn't scold him.

    -        F said he put his foot on J's arm without force as he would not go to bed – J did not cry but sobbed a bit (F said in evidence J cried about being told off and having to go to bed)

    -        J was excited to play with his mother, very talkative and expressive, M gave lots of recognition and encouragement to J who was very happy.

    -        With F J did not look at F, F made suggestions for play, J did not respond or have eye contact, they began to interact and talk, at the end J gave F some suggestions on the games. They tidied the room together and F gave recognition to his son. 

    -        J was happy with the maternal family. He had lots of interaction with uncle and

    -        M said she had been desensitised by F's financial control, verbal abuse and physical threats.  She hoped to live in HK. She said she was J's primary carer and they had a strong bond. She said J found F scary and had a strong resistance to him. M was upset with persuading J to see F as it as against J's will [HK1-1-44 Concludes 'M showed great worries about leaving I in the sole care of F']

    -        F thought M was alienating J. He said they had arguments about domestic issues and M wold leave the home if they argued.  They argued more frequently in the UK and M had slapped him. He had tapped J with his foot to get him to go to bed.

    -        Views of family: MGM thought F was demanding and mean and so J and F had poor interaction (no allegation of violence); they said F was controlling financially and did not buy daily necessities.  They thought J was different now and lacked security – he was nervous and looking for their companion (?) J had told uncle F had kicked him and that he liked M the most as she was nice to him. He (U) did not like the father. [Uncle said in evidence he said this and that F had been a good dad when J was small but was not now]

    -        J: preferred to talk in English; he liked HK because aunt and uncle were there; 'locked me in bedroom when a baby.. locked me in toilet in London.. held my nose and I could not breathe .. said once F kicked him on arm and eye 'my father always hurts me. He preferred M to F. He said he would not approach F if upset and the saddest thing he saw was F strangled M. he wanted to be grown up now and help mother (he taking responsibility for her??) He didn't like Skype as F might hurt him and didnt want to go out with F as F might hurt him.

    -        Ms M a family 'friend' whose children play with J described the parent child relationship as good, she never heard of any physical punishment of J and he was a good boy without any special problems, 

    7 Aug 2017

    M issues Divorce petition [HK2-21]

    12 Aug 2017

    Contact. Dispute over events.

    13 Aug 2017

    C50 – Contact

    J won't do anything F asks both arguing - – M being consulted – J choosing expensive toy – J at one point says he wants to jump from a balcony – J distressed and refused to go to F's place.

    15 Aug 2017

    HK hearing

    16 Aug 2017

    [C51]

    Incident when J and F argue at and after restaurant 'SIT DOWN' MGM says F angry and grabbed J by arms and dragged him. – J kicked F. Mr C intervenes. 

    J taken to Dr re 'sprained wrist'

    MGM 'J's objections to spending time with L are becoming stronger and stronger as time goes by, and have now sadly resulted in J kicking L, resolutely refusing to return to his apartment and mentioning that he may wish to die. I believe that J will suffer considerable trauma if he is to spend any time alone with F' [C53]

    18 Aug 2017

    M files statement re contact

    'I believe that frequent access with the father and the prospect of being left alone with the father is traumatising J. I believe the harm that J suffers from each contact is increasing not decreasing as I had hoped" [C61

    22 Aug 2017

    Hearing and Judgment and Order for return. Queeny Au-Yeung. Conclusions

    (1)   Has the child been subjected to physical or psychological abuse?

    Whilst the child may have been subjected to some physical or psychological harm from the father I am not satisfied on balance that it was as serious as depicted by the mother. Nor am I satisfied that the current psychological state of the child was what existed when he was first brought into refuge.

    (2)   If the child is return to England would it expose him to a grave risk of harm or place him in an intolerable situation?

    No. In relation to the deterioration in of the father/son relationship judge not satisfied on balance it was dominantly due to F's conduct

    (3)   Does the child object to returning

    The child objects based on what he said to Ms Chow

    (4)   Is the child of sufficient age and maturity that his views should be taken into account?

    The judge concludes there is no evidence of J refusing to go with F in England and no evidence of F scolding J in HK. J expresses fear of F without basis.

    "the situation greatly deteriorated in HK after separation of the father and son pending this substantive hearing. Skype access was not smooth. … MGM and aunt would not allow the child to have private time with the father notwithstanding the father and child had had excellent moments (according to F) of swimming, visiting museums and eating in restaurants. The child's narration to Ms Chow shows that he as so stressed that he had forgotten where he had gone during access, he did not want to sleep with F. He cried a but as he worried he would be scolded by F'

     

    'His almost complete rejection of the father appeared to have started only after he lives in Hong Kong with the mothers family. The fear of his father was displayed when the mother or her family members were around.

    The child is not sufficiently mature to take into account is views which were lop-sided.

    (5)   Should the court exercise its discretion?

    The judge considered that if she was wrong about the exception that safe harbour and other undertakings would be available to ensure a smooth return

     

    28 Aug 2017

    Flight to UK. M DNA

    31 Aug 2017

    HK Order re-scheduling return.

    1 Sep 2017

    J returns to UK

    3 Sep 2017

    Contact: J refuses to go with F alone

    -        [C19] Parties look for property

    -        M returns to FMH with F and J and stays for a while

    4 Sep 2017

    Contact: J refuses to go with F

    -        M and J meet F [C20] in café and visit properties. M says F became angry and shouted. M says will only continue if F calms and he does.

    5 Sep 2017

    J returns to his school.

    F and M continue looking for property that afternoon

    6 Sep 2017

    M and J occupy property

    J says F hurt him. F says J fell over.  M says she saw scratches on his 'knees and elbows' [D 20 – police report 1 tiny scratch on knee – possibly old – none on elbow]

    F takes M and J to new home. Takes J into bedroom and shouts at him. J cries.

    M calls police and alleges F has assaulted J.

    D20 – SW notes.

    -        J was reluctant to talk about F. He said he liked his mummy and sleeps in her bed with her. He didn't know what he likes doing with F. he sleeps in a bunk bed at dads.

    -        He said his friend hits him – no reference to F

    -        He likes to play with friends at school

    -        M repeated her allegation and F repeated his account that it was an accident. He said J was different to him when M was around.  M said when J came back from a contact 'Daddy didn't harm me'. M said contact was going well and her concerns were lessening. She said she and F talk everyday about J.

    -        School said J had settled well on return and they had had no concerns in the past.

    -        J observed with F and M. J calm and relaxed with M. J content and relaxed at home with F playing Monopoly. J seen alone and although shy at first talked about the game and his next moves. Was less positive about F than M. Was excited to resume playing Monopoly with F

    -        J lingered around the door when conversations with adults being held and SW noted 'it is possible J has been aware of adult conversations and issues'

    -        'I did not observe any other concerns about J's behaviour. He appeared relaxed in both his mothers and fathers care and his behaviour was consistent in both environments.'

    -        SW Manager characterises allegations against F as 'rough handling'

    8 Sep 2017

    J has staying contact. J calls distressed M tells J F has promised not to harm him.  [C23]

    14 Sep 2017

    Hearing: DJ Hudd

    -        M's application for SIO to remove.

    -        Week on/week off shared care

    -        No fact-finding issues raised and no reference to PD12J.

    M's statement 'I believe the father's temper is now worse…  I am worried about J having long unsupervised contact sessions … I had witnessed the father kicking J hard on previous occasions.'

    20 Sep 2017

    J taken to GP re behaviour. F took him as he was concerned about him being confused and occasionally being aggressive to him. GP referred to wellbeing service. SW considered this appropriate [D26]

    18 Oct 2017

    M 2nd Statement setting out relocation case.

    Contact

    I believe that it is in J's best interests to see his father as much as possible. .. I am glad to seethe father's behaviour changing.. J is now happier when he is having contact with the father.

    'I will of course ensure that J's relationship with the father is maintained. It is imperative to me that he knows his father plays an active and important role in his life and that he loves him very much. .. I want to ensure that if my application is granted and J lives in Hong Kong with me he will see and speak to his father as much as possible and as regularly as possible. .. I will do my utmost to make sure this can be facilitated.

     

    In M's oral evidence this position did not stand the test of cross-examination. M made clear she did not think F had changed, save to the extent he was under the spotlight of litigation and had to control himself, and that he presented just as much a risk to J as ever. She thought she would only think it was safe for J to have extensive contact when she saw medical evidence that F had addressed his problems. She said at present she thought J should only be having 3 hours or so with F on a few occasions a week (she initially said 2 but corrected herself) with no overnights. At times I wondered whether she really wanted supervision. She was asked what she would do if J said he didn't want to go or do skype and was scared. She said she would talk to him about it and satisfy herself whether it was safe. She could not bring herself to say that she would make sure that it happened and I can only conclude that the contents of M's recent statement are only a veneer over her true views and that in truth she believes J should have a far more limited relationship with F now and that she is not committed to maintaining a full relationship but is saying what she needs to on paper. 

    2019

    M's spousal visa expires

    Analysis

    23. [0] In order to understand what happened I think one cannot look at this in isolation from the characters of the parents, J and his experiences of his mother and father.

    24. The father is clearly a man who likes routines, structure, and tidiness. He was diagnosed with mild OCD and prescribed anti-depressant and anxiety medication. He is I think inflexible and reluctant to change course – that translates at times into a sense of his own rightness. Having heard him talk about the finances in the marriage he obviously was very much in control – and I think by and large the mother was content with this – perhaps because she is unused to financial responsibility and probably struggles to be sufficiently organised to budget. She probably did have debts which he paid off. The fathers approach may come across as mean rather than frugal or careful.

    25. At times of stress I accept he can lose his temper. Given his tendency to be controlled I doubt that – unless he was in a period of acute stress - it would happen frequently. The mother's oral evidence at one stage which clearly was genuine was of him having panic attack and 'losing it'. However from the way she described it sounded like a one-off – something so rare she felt she could jog his memory simply by saying to him across the court room 'remember that time..' If it was regular I don't think she could have described it in this way. I conclude that it is far more likely that he would be stern or strict and tell J off that that he would lose his temper. At one point in her evidence the Mother described the father telling J off but described it as losing his temper. They are clearly not the same but the mother seemed to equate them in that way. She also demonstrated him holding J's arms but then described it as like two men wrestling although her demonstration appeared more like a parent restraining a child having a tantrum or similar. Her language – and I don't believe it is do with her use of English - is to describe things like this in extreme terms. A telling off is 'losing his temper' or 'rage', the father making physical contact to make J do something or to stop him hitting out or taking him to his room becomes restraint, or pushing or wrestling. They are often over-dramatised accounts often rather than frank exaggerations. I say this because when put to the test or asked to more fully explain she sometimes demonstrates or expands in a way which gives a more accurate picture. However she clearly still views them as being of a very serious nature and worthy of serious concern on her part; whilst to any objective bystander they are well within the range or ordinary parental management of a child.

    26. So the father I conclude is a stern and exacting father figure, not as attuned to his own emotions and therefore probably not to the mother or J's. He is too focussed on routine, and activity – keeping busy. His descriptions to professionals of J and what they did don't bring their relationship to life although his familiarity with his sons Pokemon fascination was obviously real. They have less just chilling out and having fun. However his complete devotion and love for J were manifest both in his oral evidence but also in his communications; particularly in June 2017. He did though demonstrate some insight into his limitations when I asked him about that and seems to have reflected on what he has read and been told. Overall I thought he was generally reliable in his evidence. There are some inconsistencies between his statements but not such as to call his overall credibility into question.

    27. The mother is as Ms Sivills described almost the polar opposite. She is obviously more openly emotional. I can see that the mother may well have adopted relatively little routine or structure to her day or to J's and that her approach was as Ms Sivills said very laissez-faire. Given that this is the absolute opposite of Father's approach I can imagine that firstly it would have been a source of constant friction as the father wanted to follow his routines, do certain things on certain days, have tidiness and order and the mother did not want any of this. She would undoubtedly have experienced him as over-riding her and making her adopt an approach and structure she did not really want but she would go along with it for an easier life. The father rightly identified himself as pushy, salesman type which wants to get things done and get his 'deal' and I believe that would be true in his dealings with Mother and with J.

    28. M's unstructured approach also comes across in her evidence. Her answers in evidence very often quickly drifted off the point and went into some point she wanted to make. Ms Sivills noted that she found it hard to get any real understanding of why she left J with the father for such lengthy periods – this I found also to be so when the mother was asked about a subject she felt uncomfortable with – by uncomfortable I mean she did not feel she had an acceptable answer and so she deflected. This was particularly obvious when she was asked about the impact on J or the father of her removal of J in June when time and again she changed the subject and gave answers largely unrelated to the topic. I don't consider this was anything to do with interpretation for the interpreter was obviously highly effective. She was a less reliable witness in part because of her tendency to deflect but also as referred to above because of her over-dramatisation in her descriptions and in her reactions. The inconsistencies between her statements in respect of her views on contact and on the extent of abuse also show exaggeration and massaging of her position to create the required impression.

    29. In her interactions with J I am sure she would be very much a passive figure, letting J take the lead – given he is only just 8 she talks of him and his views as if he were much older – almost a teenager and I believe she is indeed a very laissez-faire mother. Her evidence suggests that with her J is the one in charge. He may also feel a sense of responsibility for her which is unfair to him. He said he would like to be grown up so he could look after her. To say she wants to implement his wish to live in Hong Kong is to give responsibility way beyond his years. That approach to a child's views was reflected by the maternal uncle who also endorsed the idea of following what the child wanted. She is very open, spontaneous and no doubt warm and loving to J. I am sure he would experience her when she is there as warm and loving and supportive of him. In contrast J would experience his father as much more disciplinarian and stern – no doubt being the one who was always telling him off and making him do things he didn't want to whereas with his mother he could do pretty much what he wanted. That in itself would undoubtedly create problems on the home front; the mother feeling the father was too harsh and was suppressing J perhaps. The father feeling undermined and that the mother was spoiling J. In the middle would be J and who would he be likely to align himself with?

    30. This would create an issue – indeed probably does in many families but mostly they muddle through with some compromises, some reflection that perhaps one is too strict the other too lax. But in this case there are other complexities both in terms of the parents and in terms of J. The mother clearly has a tendency to seek to escape, to avoid problems. At the lowest level this would show as generally seeking to keep the father sweet with tidiness rather than telling him to chill out. However in this case there are far more extreme examples of it; most obviously with the mother's absences from 2014-2017. As mentioned above Ms Sivills did not feel she could get a real understanding from the mother of what led to these very prolonged absences. Her explanations have a superficial quality (see that which she gave to Ms Chow, to Ms Sivills and in her statements) relating to having to leave in December 2014, to having to have medical treatment in 2015, 2016, to seeking work but they simply do not on closer examination explain this. At Xmas 2014 I accept that the mother returned to pack and the father said don't leave but she did – this was around J's birthday and just before Xmas. I also accept that the father struggled to contact her and J did not have contact on Xmas Day. I understand the mother's dilemma in one sense – she obviously had very limited means - but on the other hand I do not accept things were as bad as she paints in terms of father's mood, temper or behaviour. She says he blew his top at some paint on the floor – if she thought his losing it was sufficient to scare J, or to put J at risk of physical harm it is inconceivable that a primary carer mother would leave her child in that situation. Her account of 3-4 times a week rages with a physical and emotional dimension are wholly inconsistent with leaving J. The only conclusion I can reach is that her account is an exaggerated or over-dramatised version. She must have considered J would be sufficiently well cared for to leave him with the father and would not suffer physical or emotional harm.

    31. What I find much harder to understand then is the length of time she spent away. The communications between the parties – do not have a flavour of coercion, anger or indeed contrition which would be the emotions most likely to be on display if the mother's account was right. The father was looking to the future and opening a discussion which included reference to Singapore. And so despite being on the face of it a devoted primary carer the Mother was able to keep herself away from J for several months. What J must have made of this is hard to gauge now. The father says he was very upset and didn't really understand. I think that is likely to be true. He then saw the mother in HK/Singapore and then he flew back to UK and the mother stayed in HK – ostensibly she says to complete interviews – but she stayed 2 more months. She then returned which must have been an immense relief and joy for J but within a few months she again leaves – this time for an operation on a cyst and was gone 7 months. I do not accept either that she had to go to HK for that operation or that she needed to stay that long for medical reasons; as the evidence from the doctors shows.

    32. So J's mum disappeared from his life save for skype and the father became his primary carer. The extent of her absence is reflected for instance in the documents from the after school club. What went through J's mind can be imagined. I think J must have felt confused, upset, abandoned probably, rejected perhaps by his doting mother. I got the impression when the mother gave evidence of such things that she found it hard to contemplate those deeper emotions and consequences. Whilst she is very open emotionally – I was unsure how deep those ran and how sophisticated her understanding of the impact on J. In a sense her approach is rather unsophisticated. If J says he doesn't want to do something or is scared we take it at its face-value rather than thinking about it any deeper or thinking whether that is best in the longer term. I don't think the mother thought about the more deep-seated emotional impact her absences were likely to have on J. The reality was that J was left by his mother for the majority of a 2 year period. This must have had consequences for him in terms of his emotional development and the relationship with his mother and his father. It also shows that by summer 2016 M was not so worried about the father F that she couldn't leave J safely in his care albeit with support from her M. The GP report of two incidents of the father restraining J (which at worst I would characterise as rough handling). I also cannot understand why if M felt F was so abusive, controlling, abusive, explosively temperamental how she would have exposed her mother to that behaviour.

    33. I consider when his mother did return that J must have been delighted to have his warm and relaxed mother back supporting him – but it must have created tension as by now the father would very much have firstly settled a regime and routine in their lives and would have felt the mother had little right to query it and would have felt aggrieved if undermined. That is why I believe he felt able to say to M in June 2017 she should leave it to him to explain to Social Services about their family life and that she helped him – not because he was controlling – but because he had had to take control .

    34. That history and the parties' personalities set up a combination which was likely to prove highly problematic. Like the introduction of reactive chemical elements to each other both Father and Mother were not compatible but the domestic situation after that 2 year history was highly combustible. J must have been either subconsciously or consciously very alive to the possibility that his mother would disappear again. I believe he would have very much wanted that not to happen and would 'side' with his Mother and feel closer to her. So when an incident such as that of 10 June occurred and there was talk of separation he would have been terribly anxious.

    35. When his Father told him to go to bed on June 14th and he refused this was a spark about to ignite the powder. Having considered all the evidence about this incident but also all the other evidence about accounts given by the mother and J about the father I think that the incident was far closer to that described by the father than that of the mother. However I think that the father has minimised it to a degree. I conclude it more likely than not that the father got cross with J and pushed him with his foot – perhaps it was too hard – perhaps he ended up standing on his arm and bruising him. It was too forceful but I am satisfied it was not the 'repeatedly and violently kicking' as the mother says. A kick to the face would be likely to have caused serious injury. Probably as J got up there was further physical contact. Knowing his mother would support him he goes to her and cries about daddy kicking him – after all it was contact between a foot and him so it was a 'kick' in a child's mind. I don't consider J to be lying – it is perception. How many children say things they don't truly mean 'I hate you' etc. The mother who is again by this time deeply unhappy and on the verge of separating anyway takes this as the final straw and the next day goes to social services.

    36. I am not sure what prompted her to make that approach. I wonder whether she had been discussing the situation with her family who she turns to and relies on? She had of course undertaken a counselling course and the contents of that and her lengthy meditation studies in Hong Kong may have convinced her that the explanation for her predicament was that she was a victim of coercive control. She is by this time deeply disenchanted with the father, she does see him as domineering, she has been side-lined in the care of J, perhaps she thought the bond of motherhood could never be replaced but F has done so in many ways. She doesn't immediately leave but sees Social Services and Women's Aid and returns home and it is only when F opens the letter and she then speaks to Women's Aid that she is almost forced to leave by the discussions she has with Women's Aid.

    37. I have little doubt that M us unable to protect J or hide her feelings from him. She may not be deliberately planting poison but she is so open AND treats him as older than he is, that I am sure he has picked up not only her anger and distaste for the Father but also an element of anxiety or fear arising from her over-dramatisation. I did not detect obvious fear of the father in any of her evidence – frustration, sadness, anger but not fear in the classic sense. Certainly anxiety about his response and what would happen to her. There are examples of J saying things which it seems he could never have recalled from his own memory; the mother being strangulated by the when he was a baby as he said to Ms Chow. The mother had said it in DASH but put it many years ago which would be consistent with J being a baby), him being locked in the toilet when he was two, him being locked in a room with a snake when he was 3. These seem most likely to have been picked up from the mother and her family. As the mother said she was on the phone to her family 'every second' and the social worker noted that J had possibly been exposed to adult conversations. I can well understand that as the mother left the father and moved into refuge, consulting by phone or skype with family and recounting what had happened the incident which in many families might be fairly innocuous has become magnified into something it wasn't and J's attitude to his father moved to one where when asked about his father he would describe him as his mother would; in terms of being afraid of him.

    38. That this is a construction is shown by how easily J readjusted when left with his father on 21st June as observed by the social worker. That his relationship with the father was not characterised by harsh discipline, regular physical abuse, emotional abuse are I think amply demonstrated by the school report, the school discussion with the social worker, the after school club reports, the GP, Ms M. All show a child doing well, showing no signs of problems in the care of his father (and at times mother) , These are inconsistent with the mother's account of the sort of atmosphere and behaviour she describes of Father towards her but most importantly as she says and most frequently towards J. I have little doubt that the mother and Father fell out over various issues – I believe that J was one of them. I think the nature of how these relatively minor incidents can escalate is also well illustrated by the 6 September 2017 incident when J tells his mother his father has thrown him to the floor. The mother calls the police and tells them this and that J has scratches on his knees (plural) and elbows (plural). The police attend and examine J and find one tiny graze on a knee which they are not even sure is recent. I accept the Father's account of J behaving in a silly or slightly naughty way – probably feeling empowered by what happened in HK – the Father having none of it, J losing his grip and falling over and then running to his mummy complaining about daddy where he knew he would have a sympathetic ear.

    39. When the mother left in June 2017 and in December 2014 I think she left because she felt she must - although objectively she did not and in that she allowed her interests to take precedence over J's. I don't think that she gave any thought to the medium to long term consequences for J either of her leaving or of removing him. I don't think she planned the abduction in anything other than the day or two beforehand. She reacted to a situation but reacted extremely – perhaps another reflection of her not thinking through the consequences. The extreme reaction is a reflection of how she magnifies the problems. It can then lead her though to ignore any other consideration; whether that be the law, her prior agreement, the interests of others, the medium to long term view.

    40. Overall I do not believe there was long term physical or emotional abuse of her or J. She called the police in 2013 after an argument which didn't involve violence – I think she would have contacted services including police if the father had strangled her or scalded J or locked him frequently in the toilet or anything else of that nature. As I have said before if she had thought J was seriously at risk she would not have left him. The weight of the evidence, in particular from the independent sources does not support the mother's account. Yes there may have been a power imbalance, yes the father may have been the more dominant but I do not accept that coercive control was present in this relationship which the mother was able to leave and stay away for the best part of 2 years, returning on several occasions, in which she signed up (with the father's encouragement) for a counselling course and where she present in court both generally and in her interaction and approach to the father as the mother did.

    41. It is against this backdrop thus that J's narrative whilst away from the Father become divorced from the reality; where minor incidents have been magnified partly out of his fear of losing M, partly built on M openly exposing her feelings about F and sharing some stories in J's presence, so that J expressed fear of F as that has become the narrative in the care of his Mother who he fears losing.

    42. Thus in terms of determining whether the light touch fact-finding approach was appropriate or whether a deeper enquiry was required to comply with the FPRPD12J obligations I have concluded that the documentary and oral evidence has resulted in a clear picture emerging. Not entirely complete but clear enough to conclude that

    - This was not a relationship of coercive control. The parents at times had a turbulent relationship which deteriorated in England particularly with the mother's absences leading to more conflict on return as she sought to reinsert herself into the routine the father had created. She was disempowered but this was a result of the situation not the father seeking deliberately to sideline her. He was left in charge and became used to being in charge. The father and mother both on occasions lost their tempers, the father held the mother, the mother slapped the father. It was bad behaviour – no doubt both regret they exposed J to it.

    - The father has not physically or emotionally abused J. His approach to discipline is at the stricter end of the scale but he is neither physically or emotionally abusive. The injury J sustained was I conclude accidental not deliberate.

    43. Having dealt with those issues I turn now to the holistic evaluation of the competing proposals by reference to the FKC Payne composite. Into this section I will incorporate Ms Sivills' evidence.

    The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding),

    44. J has been spoken to by several professionals over the last 6 months. In his recent interview with Ms Sivills he spoke positively and negatively of both his parents. He enjoyed doing things with both of them. He was sad his mum went away. He was fearful of his father. He does not like living with his dad every week. He was worried what his father's reaction to learning of his worries. He heard his parents shouting at each other.

    45. When he drew his family he left his father out. This was when he attended with the mother. Ms Sivills did not think this was very significant. I agree – although I think it does reflect for J how his father is not a welcome part of things when he is with his mother. J says he wants to go to live in Hong Kong – he prefers his uncle to his mother and father. Interestingly his uncle is preferred to his maternal grandmother who has lived in England looking after him for lengthy periods of time.

    46. I think J's current expressed wish is a combined reflection of :

    - His uncle is the benevolent uncle who is kind and funny – J does not appreciate that parents have a different function. His uncle obviously will go with what J wants as he said in evidence.

    - The environment in England pre-June 2017 was deteriorating That ended in June in the circumstances described and became magnified into his Father posing a serious risk to him.

    - Hong Kong was a holiday with I think a doting MGM, M and uncle where J was the centre of their world. It was free from conflict – save when he saw his father. It was a stark contrast to the home in England.

    - Hong Kong therefore seems like the peaceful sunlit uplands compared to the conflict-ridden shade of his parents home.

    47. I don't think J has the age or maturity to understand the impact of living in Hong Kong. He is in truth a little boy who should never have to make these choices. His school reports show he has the maturity of a 7-8 year old and one cannot expect him to express a view which can in any way really process the pros and cons of the options open to him. His views have been shaped by his exposures over the last 6 months and like my sister Judge in Hong Kong I don't believe his expressed views should carry much weight.

    48. From all that I have read and heard I believe that what J wants is to live with his mother and father in a conflict free world where he can enjoy activities with both and get on with school, sports and Pokemon. Where he can see his maternal family and his paternal family. He prefers his mother's household because he it revolves around him and discipline is very limited indeed. He enjoys his father but wants him to be less strict and disciplinarian and to feel less anxious about him.

    Their physical, emotional and educational needs,

    49. J is physically well and enjoys his food. His educational needs are those to be expected save that he will no doubt benefit from ensuring his English or his Cantonese are maintained even if he is living in a country where they are not the first language. It is emotional needs which are at the forefront of this issue. As Ms Sivills says he needs to have a continuing meaningful relationship with them in order to grow up in psychological or emotional good health. He has suffered emotionally through the absence of his mother and from his belief that his father was a figure to be feared. The separation and events in Hong Kong have added considerably to his emotional burden. As Ms Sivills identifies he doesn't have a sibling group to share this with. His statement that he didn't like anything about himself is worrying. If he fears his mother leaves because she doesn't love him and his father tells him off because he is not good enough his self-esteem will suffer accordingly. Both parents need to nurture him. The difference in the parent's styles of parenting creates a real issue. As J grows older a situation where one household and parent offers freedom and power and the other imposes strict boundaries and discipline is problematic. He is bound to come into conflict with the father who seeks to control him. Equally he is likely to walk all over his mother. Neither are good for him. Both will need to amend their styles and both may benefit from guidance. J needs to have as much that each parent can offer him in terms of emotional support to ensure as he grows from child to adolescent to man that his emotional development is as healthy as his physical. His emotional need to know his wider family will inevitably be limited by his location. One or other will play a role, one will not. In Hong Kong his maternal family will clearly offer more than the paternal family in England who are more remote.

    the likely effect on the children of any changes in their circumstances

    50. J is facing change. If he remains in England there will be changes afoot. His mother will need to find a permanent home. That would hopefully be in the area where he can remain at his current school and continue to live with her. He will face a change in his mother becoming a single parent to him and establishing a medium to long term home here. That will have an impact on her which I will consider. I hope J will experience a change in his father too; that whilst remaining a man of routine and boundaries he will develop some softer edges and be able to take the edge off J's anxiety. J's experience of his mother in the last two years has been of inconstant presence. I hope that will change and that whether in Hong Kong or England she will be a constant. I shall return to this.

    51. If he moves to Hong Kong the change will be profound. It is not a new country or environment though and I am sure he would make the transition to a new home with his mother, grandmother and uncles and to the city and community without much difficulty. He would be able to assimilate into his new school and the limits in his ability to read and write Cantonese can be managed. The mother's plans are realistic and as it is her home country I am satisfied she can bring the physical elements to fruition. J would have the benefits of close relationships with his adored uncle, his aunt and grandmother. I believe the mother would promote both his Chinese and English heritage and language.

    52. I conclude there would be a positive impact on his mother. She would be in her home environment. She would feel supported. I think she would find it much easier to secure work and to be happy in Hong Kong than in England. That is likely to benefit J. I think there is less of a risk of her disappearing from J's life if she is in Hong Kong. I say less of a risk because I conclude there is still a risk that even if J lived in Hong Kong that she might leave him in the care of her mother and brother whilst she went elsewhere. This possibility arises from her actions over the last 2 years. Her explanations simply don't persuade me that her absences from J's life were necessary. They were her choice and I conclude there remains a risk of this. That risk is greater in England than in Hong Kong but it exists in both.

    53. The most significant change would be in respect of his relationship with his father. Having experienced his father as his primary carer for the majority of the last two years a move from that is a big change. The evidence from the school and after-school and from all who have met J paint a picture of pleasant, shy, diffident boy who is doing as well in terms of friendships and school achievement as might be expected. Both parents have obviously contributed to this but in the last 2 years it is his father who has been the principal carer. J has experienced significant periods of time without his mother but less without his father. It is clear that the father has much to offer J – although that could be improved upon.

    54. A move to Hong Kong will inevitably mean a profound change in the relationship with the father. I accept that it is now impractical to expect the father to return to Hong Kong and to seek to establish a new business there. From his description of his client base and the work involved it is clearly London and US centred and would involve giving up an established income and business to start afresh. At his age starting up afresh would not be easy. In other respects I think he could probably make a transition to life back there – he lived there for many years. There is a risk to his health though. He seems to be stable health wise since 2013 but a significant increase in stress which would accompany a return to Hong Kong and to seeking employment there might lead to a deterioration in his condition of the sort that occurred in 2013. So I don't think that the father either could or should relocate to Hong Kong. That means if J moves to Hong Kong his relationship with his father will be one of international contact for 4 weeks in the summer and 1 or 2 x12 days at Christmas, Chinese New Year or Easter. That is a holiday relationship – which is what the mother thinks is the best relationship for J and the father to have. J would not grow up with them being part of each others lives, experiencing the daily ups and downs, developing and growing together as individuals. He will be a remote presence. Skype, whilst far better than the telephone is no substitute for presence waking up and preparing for school, at the school run, doing homework, participating in weekly activities, being a part of a community together. A remote and holiday presence is the best that can be achieved. That will be the case if the contact proposal is realistic and can be put in place. I consider that on a practical and financial level it can be. The father's devotion to J is such that I am sure he will move heaven and earth to maintain the relationship. He might even consider moving to Hong Kong. Flights are expensive at holidays but I think he could manage the cost or a fund could be created from the equity to enable it. The issue in this case is whether contact would endure for other reasons; I will explore that under the risks. J will lose his relationships with his extended family although it seems they are nowhere near as deep-rooted as those with his maternal family.

    His age, sex, background and any characteristics of his which the court considers relevant,

    55. J needs to grow up with exposure to both cultures that he is born from. As Ms Sivills said, being an only child in particular he will need to develop friendships and not just spend time with the adults in his life.

    Any harm which he has suffered or is at risk of suffering (there is obviously a significant overlap here with the effects of a change)

    56. J has suffered harm. He suffered a bruise from the incident when his father accidentally kicked or stood on him. That is the far less worrying aspect of harm. J has in my view suffered emotional harm in the following forms

    - The absence of his mother from his life which left him sad and confused and which I think now contributes to a degree of insecurity and his lack of self-worth. Those absences were not justified and thus J would not understand why his mother had disappeared.

    - Fear and anxiety around his father which has arisen in part (although the lesser) from his father's strict parenting which has been too much of a contrast with the mothers. The other part though has been the development of an unjustified fear of his father which has been significantly increased by the attitude of the mother and her family. J has been exposed to hearing things about his father he should not have- either because they are not true or should not have been said in his earshot. His mother's reaction to the father's discipline which is within the acceptable range of parenting has been so over-dramatised and extreme that it is created a wholly unwarranted fear in J about how safe his dad is.

    57. I consider there are risks to J whether he moves to Hong Kong or remains in England.

    58. If he remains in England there are risks that the mother's parenting will be compromised. I do not believe she will suffer a collapse. She has no history of mental illness. I think she will be able to find work and to build a life here. The absence of friendships is in part a function of her physical absence and in part a function of the rather insular style of relationship the parent had. Neither seems to draw great support from a close network of friends but rather rely on their partners. With some attention to her English through courses or otherwise I consider she would be able to obtain employment within her field. She is intelligent and bright. She will be unhappy though and inevitably that might have some impact on J. However I believe that the risks are limited in level and consequences. Involvement in the school during her week, securing work, accessing the Chinese church and community can all help in minimising any impact. She can gain some degree of support by her family visiting and by her returning to Hong Kong alone or with J.

    59. There is an on-going risk in England of the parental conflict impacting on J. The difference in attitudes in the parents gives rise to a risk of J of being confused by different approaches or as referred to above becoming too powerful in his mother's or too much in conflict in his father's. There is a risk each parent will continue to see themselves as the primary carer whose decisions should hold sway. I think with work these can be managed. Having concluded that this is not a coercive control situation I do not consider the mother is at risk from that.

    60. The far more concerning risk in my view is the risk of him losing his relationship with his father if he moves to Hong Kong. I conclude this is a very significant risk for the reasons given by Ms Renton. As things stand now I think the risk is of a very level of probability closer to near certainty than on balance. That is for the following reasons

    - The mother is absolutely convinced the father presents a real risk to J. Her statements otherwise unravelled in oral evidence. She does not believe he has changed and will not believe he can until convincing medical evidence tells her. Even then I am not sure she would accept it.

    - She believes the father should now be having very limited contact – 2-3 hours for a few occasions each week. Even that 'belief' may mask an underlying belief that it should be supervised.

    - Her actions in Hong Kong in seeking to limit contact and the reasons she gave have not changed.

    - In Hong Kong J's attitude to his father significantly changed. The change is manifest from the Chronology and the judgment of the Hong Kong court. That change derives primarily from the behaviour of the mother and her family not from a lived experience for J.

    - The mother believes she should do what J wants. She does not believe it is appropriate to over-ride him,

    - The mother has tailored her approach to contact and to evidence to meet the needs of this case. She has agreed to contact she does not believe in and she has said she thinks it is going well when she does not.

    61. Thus the risk is very high. The consequence in practice will be the complete termination of J's relationship with his father. His fear will be fostered not negated by the environment in Hong Kong. Contact will not happen because J will not want to go and the mother and her family will not make him because he says he doesn't want to and they don't believe he should be made to. No order of a court can prevent or ameliorate this. I have doubts as to whether the mother would abide by an order of this court. Her track record suggests she will do what she considers best. Her oral evidence was that she would decide in the situation she then faced. Maintaining contact in the face of parental resistance is hard enough when the parents live in the same country; our own experience in these courts tells us this. The international dimension introduces a further level of complexity.

    62. The loss of his relationship with his father will in my view be a very serious loss for J given what his father has to offer and the role he can play in his life.

    63. I also consider that the impact on the father of J moving would be significant. He has built his world around J now and his emotions bubbled to the surface when he contemplated life without him.

    How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs?

    64. Both parents have much to offer J. Each are capable of meeting his physical needs. They have so far brought up a child who is doing well in many ways. They are each capable of meeting his educational needs – both believe in this.

    65. The mother in particular has the ability to provide a very warm and loving home in which J's confidence in himself can grow. I believe the mother can co-parent with the father. Strangely they still seem at times to be capable of working together on practical issues to do with J in England. The very significant limit in the capability of the mother is her ability to truly understand the importance of J's father to J and to meet his need to have a relationship with his father. Whilst in England that incapability is of limited impact because J will be having that relationship by order and will be thriving. The issue arises in the context of Hong Kong where that lack of capability becomes hugely significant. A return to Hong Kong will I am satisfied lead to a resurrection in full force of the mother's concerns about the father. Whilst the mothers desire to move to Hong Kong is not motivated by a desire to end the father-son relationship a component in it is to keep J safe and to introduce a relationship that is far more limited with the express rationale that J needs to see less of his dad to be safe. That will mutate into J becoming fearful and he will not want contact and the mother will be incapable of promoting it. History will repeat itself only this time it would probably be irreversible given the father would be in England and J permanently in Hong Kong.

    66. I believe the mother's capability (in all save promoting the father-son relationship) would be enhanced by a return. She will be happier and feel better supported. But in particular given her own attitude and those of her family her ability to support the father-son relationship will remain seriously compromised. Neither her mother or brother can provide any sort of objective weight to bear which would be likely to improve this aspect. They feed her fear rather than ameliorating it.

    67. The father has the ability to meet J's emotional needs. He needs to develop a better understanding of the growing boy who is no longer an infant and to introduce some other elements to his parenting to accentuate the fun and warmth and reduce the routine and discipline. I conclude he is prepared to co-parent with the mother. His texts in June, his organising Mandarin lessons and a birthday party without reference to the mother do not in my view justify the conclusion that he will marginalise the mother and impose his will. Both parents have acted unilaterally at times. The father sometimes had to in the absence of the mother and he cannot be blamed for this. He may need to re-learn the skill of compromise and negotiation with the mother. In any event a co-parenting agreement and orders as to time would assist in ensuring co-parenting meant what it said. However if J lives in Hong Kong there is a high risk he will play no role at all.

    68. In Hong Kong the maternal family will clearly be of great practical support. They will also help meet J's emotional needs. The flaw in their capability is in respect of the father. They accept he is a risk. They will support J. They will not override the mother but buy into her narrative. They cannot meet J's need for a relationship with his father.

    69. In England the family support is less obvious. The evidence shows the paternal family have supported his parenting but only in a fairly limited ad hoc way. I do not think the paternal aunt could provide the level of support she said but then she probably does not need to with the school wrap around care and both parents being present if J is in England.

    The range of powers available to the court under this Act in the proceedings in question.

    70. There are clearly aspects I have considered above that can be assisted by orders.

    - In England a shared-live with order with a closely defined parenting agreement or orders as to the exercise of PR would ensure balance

    - Both parents would benefit from attending parenting programmes: the father in the field of attuned parenting the mother in guidance and boundaries

    - Mirror orders can be made to seek to ensure a return from Hong Kong from holidays

    - Spend time with orders mirrored in Hong Kong whilst J lives there may be of limited utility where that Court has primary jurisdiction and where J might be refusing to have contact.

    Conclusion

    71. Taking into all of those factors and trying to discern which route will best promote J's welfare has ultimately become clear. I take into account all the undulations, valleys, and peaks from the route map. If the mother had been able to promote J's relationship with his father the balance to be struck would be much more finely balanced. I accept she would be much happier in Hong Kong and that would have benefits for J. She does not need to prove she will collapse for me to accept that remaining in England will have an adverse impact on J. She will be less happy certainly ion the short term and that will have consequences for J. However the weight that I must give to the probable loss of the father-son relationship is very considerable. That is a relationship of real value now and it can be improved on further. In England J can live a life with both parents and continue the stability he has recently found and as Ms Sivills has said from which he is benefiting. A way has been found to make it practical for the mother to remain and so Ms Sivills caveat has been filled.

    72. Thus taking all matters into account in a holistic and non-linear way and carrying out a comparative balancing as best I can I have reached the conclusion that the balance between the two options for J is that he should make his life in England in the shared care of both his parents.

    73. I do not intend to prolong the litigation. The shared care – week on week off regime should continue for the foreseeable future. Holidays should be shared equally. The mother should be able to take J to visit Hong Kong next summer provided there have been no intervening issues over compliance with the orders. It will be a condition of the order that the father puts into effect his financial offer.

    74. I will hear the parties further on the 17th January 2018 to finalise the order unless prior to that the parties agree a comprehensive order which I am able to approve.


Judgment, published: 16/03/2018

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Published: 16/03/2018

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